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Court of AppealAllowedCivil Application No. NAI. 313 of 1995

Stephen Kagooiyo & another v Joseph Waithaka Kabai & 3 others [1996] KECA 152 (KLR)

Court of Appeal
29 April 1996
ROR.S.C. OmoloAAA.M. AkiwumiALA.A. Lakha
223 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a notice of appeal because the appellants never filed the actual appeal even after time had run out.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Omolo, Akiwumi and Lakha, JJ.A.) on a civil application to strike out a Notice of Appeal lodged on 16th March 1995. The underlying judgment of the High Court of Kenya at Nairobi (Ringera J) in H.C.C.C. No. 4089 of 1988 was delivered on 6th March 1995. The applicants lodged the Notice of Appeal on 16th March 1995, but failed to take an essential step in the appellate proceedings: although the proceedings of judgment were ready and available by 20th September 1995, no appeal had been filed, and the time for filing the appeal had lapsed. The respondents applied to strike out the notice on that basis. The court allowed the application, holding that the failure to file the appeal within time after the proceedings were available amounted to an essential step not having been taken. It ordered that the Notice of Appeal lodged on 16th March 1995 be struck out with costs. The ruling is a brief procedural decision on appellate practice; it affirms the court's willingness to strike out notices of appeal where the appeal is not prosecuted and time has expired. The decision binds subordinate courts and the High Court on this practice point. No authorities or statutory provisions are cited in the ruling, and the judgment is a single ruling of the whole court with no separate opinions or dissents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Appeal lodged on 16th March 1995 should be struck out where an essential step in the proceedings has not been taken and the time for filing the appeal has lapsed

Key legal issues

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01

Striking out a notice of appeal for failure to take an essential step in the proceedings

Holding

Where judgment has been delivered, the notice of appeal filed, the proceedings of judgment ready and available, and yet no appeal has been filed and the time for filing has lapsed, the notice of appeal is struck out.

Reasoning

The court noted the chronology: judgment delivered 6th March 1995, notice of appeal filed 16th March 1995, proceedings of judgment ready by 20th September 1995, but no appeal filed to date and time having lapsed. The inaction constituted failure to take an essential step, justifying striking out the notice with costs.

p. 1

Legal principles established

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  • A notice of appeal will be struck out where an essential step in the proceedings has not been taken and the time for filing the appeal has lapsed.

Court orders

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  1. 1.The Notice of Appeal lodged in Court on 16th March, 1995 is struck out with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
AA
majority
AL
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 4089 of 1988
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over notices of appeal lodged under the Court of Appeal Rules (application to strike out a notice of appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the application succeeds and the Notice of Appeal lodged in Court on 16th March, 1995 is struck out with costs.
p. 1Final orders - striking out of notice of appeal
the proceedings of judgment were ready and available on 20th September, 1995 but no appeal has been filed to date. The time for filing appeal has now lapsed.
p. 1Failure to take essential step in appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Kagooiyo & another v Joseph Waithaka Kabai & 3 others [1996] KECA 152 (KLR)", Case Analysis (1996). Civil Application No. NAI. 313 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/152/eng@1996-04-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.